United States Court of Appeals For the First Circuit

No. 21-1589

MR. AND MRS. DOE, individually and as parents and next friends of JOHN DOE, a minor,

Plaintiffs, Appellees,

v.

PORTLAND PUBLIC SCHOOLS,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE

[Hon. Jon D. Levy, U.S. District Judge]

Before

Lynch, Thompson, and Gelpí, Circuit Judges.

Eric R. Herlan, with whom Drummond Woodsum & MacMahon were on brief, for appellant. Richard L. O'Meara, with whom Murray, Plumb & Murray were on brief, for appellees. Selene Almazan-Altobelli and Ellen Saideman on brief for Council of Parent Attorneys and Advocates, Inc., amicus curiae.

March 29, 2022 LYNCH, Circuit Judge. Portland Public Schools

("Portland") appeals from the entry of an order from the district

court issued under the stay-put provision of the Individuals with

Disabilities Education Act ("IDEA"),

(j), as

implemented by

and judicial opinions. The

court order required Portland to pay for John Doe's tuition for

the duration of this litigation at Aucocisco School ("Aucocisco"),

where Doe's parents unilaterally placed him in February 2020. Doe

v. Portland Pub. Schs., No. 20-cv-00461,

, at *1

(D. Me. July 20, 2021). The district court found that an

administrative hearing officer's reimbursement order constituted

agreement between the state and the parents that a change of

placement to Aucocisco is appropriate.

. The court did

so despite the fact that the hearing officer whose decision was

being reviewed by the court had determined that the individualized

education plan ("IEP") issued by Portland in January 2020 would

provide a free appropriate public education ("FAPE").

Portland in fact paid for Doe's tuition for the new

placement at Aucocisco for the spring and fall semesters of 2020,

as the hearing officer required. This was merely an equitable

remedy the hearing officer ordered to remedy Portland's denial of

a FAPE to Doe from December 2017 to November 2019. The hearing

officer separately concluded that Portland provided Doe with an

IEP which met the requirements of a FAPE as of January 2020.

- 2 - Portland appeals from the district court ordering it to pay for

Doe's placement at the private school during the pendency of these

proceedings.

We assert jurisdiction and reverse.1

I.

We recite the facts relevant to this interlocutory

appeal. When Doe was in the second grade at East End Community

School ("EECS"), his parents referred him for evaluation as a

potential special education student in September 2017. The IEP

team met in December 2017 and concluded that he was not eligible

for special education services.

At the end of Doe's third-grade year, in May 2019, his

parents once again referred him for special education evaluation.

The IEP team administered evaluations in the fall of 2019 and

concluded in November 2019 that he was eligible for special

education services. On January 24, 2020, the IEP team proposed an

IEP to the Does which would have allowed for Doe's placement at

any of Portland's public elementary schools.

Meanwhile, in May 2019, Doe's parents began taking him

to tutoring at Aucocisco, a private school serving students with

disabilities, which continued through that summer. In fall 2019,

Doe's fourth-grade year, his parents unilaterally placed him at

1 We thank amicus curiae Council of Parent Attorneys and Advocates, Inc. for their helpful brief.

- 3 - another Portland private school, the Breakwater School, and also

engaged a private tutor for him. Then in February 2020, they moved

him to Aucocisco, the school that he continues to attend today.

The Does also engaged Dr. Marcia Hunter to conduct a

neuropsychological examination of Doe during several visits over

a period of several months spanning November 2019 to March 2020.

On November 6, 2019, while Doe was enrolled at the

Breakwater School, the Does filed for a due process hearing with

the Maine Department of Education, alleging that Portland violated

the IDEA by finding him ineligible for special education services

between December 2017 and November 2019. They also challenged the

January 2020 IEP Portland had offered. After a four-day hearing,

the hearing officer concluded that Doe had been denied a FAPE

between December 2017 and November 2019. The hearing officer

ordered Portland to reimburse the Does $74,613.35, which covered

the costs of his tutoring and summer programming at Aucocisco in

summer 2019, the private tutor they engaged in fall 2019 when he

was at the Breakwater School, classes at Aucocisco in spring and

summer of 2020, Dr. Hunter's evaluation, and the fall 2020 semester

at Aucocisco. The hearing officer found, however, that the January

2020 IEP offered Doe a FAPE, and did not order continuing placement

for Doe at Aucocisco.

In order to reach her conclusions regarding

reimbursement and the appropriateness of the proffered IEP, the

- 4 - hearing officer conducted two separate analyses. She noted that

a unilateral private school placement is proper for reimbursement

if it provides "'some element of the special education services'

missing from the public alternative . . . ." Mr. I. ex rel. L.I.

v. Me. Sch. Admin. Dist. No. 55,

(1st Cir. 2007)

(quoting Berger v. Medina City Sch. Dist.,

, 523 (6th

Cir. 2003)). She concluded that "[t]he tutoring and programming

provided by Aucocisco, as well as the tutoring provided while [Doe]

was enrolled at Breakwater, easily satisfy the standard . . . by

providing some element of the missing special education services."

In contrast, in determining that the January 2020 IEP

was appropriate, the hearing officer applied a more rigorous

standard. She noted that the IDEA "requires an educational program

reasonably calculated to enable a child to make progress

appropriate in light of the child's circumstances," Endrew F. ex

rel. Joseph F. v. Douglas Cnty. Sch. Dist. RE-1,

(2017), and it also requires that the child be placed in the

least restrictive environment possible,

(a)(5)(A).

After analyzing the IEP, the hearing officer concluded that "the

program and placement in the IEP issued by [Portland] in January

2020 was reasonably calculated to enable [Doe] to make progress

appropriate in light of his circumstances while allowing his

education with peers to the maximum extent appropriate . . . ."

- 5 - After the hearing officer's decision came down, the Does

filed a complaint in federal district court in Maine on December

9, 2020 seeking damages and attorneys' fees and challenging the

portion of the hearing officer's decision approving the January

2020 IEP. On March 5, 2021, they filed a motion to enforce

placement at Aucocisco under the IDEA's stay-put provision.

Following a hearing, the district court granted the motion on July

20, 2021, ordering Portland to pay for Doe's continued placement

at Aucocisco during the pendency of these judicial proceedings.

Portland now appeals that determination.

II.

As a matter of first impression in this circuit, we find

that jurisdiction over this interlocutory appeal is proper under

the collateral order doctrine. See Cohen v. Beneficial Indus.

Loan Corp.,

(1949) (noting interlocutory review

appropriate where a decision will "finally determine claims of

right separable from, and collateral to, rights asserted in the

action, too important to be denied review and too independent of

the cause itself to require that appellate consideration be

deferred until the whole case is adjudicated."). Four circuits

have already concluded that there is interlocutory jurisdiction

and we agree. See A.D. ex rel. L.D. v. Haw. Dep't of Educ.,

(9th Cir. 2013); St. Tammany Par. Sch. Bd. v.

Louisiana,

, 781–82 (5th Cir. 1998); Bd. of Educ. v.

- 6 - Ill. State Bd. of Educ.,

, 657–58 (7th Cir. 1996);

Susquenita Sch. Dist. v. Raelee S. ex rel. Heidi S.,

,

81 n.4 (3d Cir. 1996). Both parties agree in this case that

jurisdiction is appropriate.

Stay-put orders are appealable under the collateral

order doctrine because the appeal conclusively determines the

issue of the student's placement during litigation, it resolves an

important issue which is independent from the merits of the

student's ultimate placement, and a stay-put order is effectively

unreviewable after final judgment. See A.D. ex rel. L.D.,

.

III.

We review the district court's determinations of legal

issues de novo, and findings of fact are reviewed for clear error.

Johnson v. Bos. Pub. Schs.,

(1st Cir. 2018).

"Where the case raises mixed questions of law and fact, we employ

a 'degree-of-deference continuum,' providing 'non-deferential

plenary review for law-dominated questions' and 'deferential

review for fact-dominated questions.'"

(quoting Doe v. Cape

Elizabeth Sch. Dist.,

(1st Cir. 2016)). The issue

in this case -- whether the hearing officer's determination

constituted "agreement" between the state and the parents that

Aucocisco was Doe's appropriate placement -- is a purely legal

one, so our review is de novo.

- 7 - A.

Section 1415 of the IDEA,

et seq.,

outlines procedural safeguards for state and local school

districts receiving federal assistance for education of children

with disabilities to ensure the provision of a FAPE to those

children. See Verhoeven v. Brunswick Sch. Comm.,

(1st Cir. 1999).

Section 1415(j) requires that "during the pendency of

any proceedings conducted pursuant to this section, unless the

State or local educational agency and the parents otherwise agree,

the child shall remain in the then-current educational placement

of the child . . . ." Commonly referred to as the stay-put

provision, this provision "is designed to preserve the status quo

pending resolution of challenge proceedings under the IDEA."

Verhoeven,

. "The preservation of the status quo

ensures that the student remains in the last placement that the

parents and the educational authority agreed to be appropriate."

.

Determining the last agreed-upon placement is more

complicated when parents unilaterally decide to place their child

at a private school without the school district's approval. An

administrative decision in favor of a unilateral change of

placement to private school by parents can constitute "agreement"

by the state to that placement for purposes of the stay-put

- 8 - provision. See Sch. Comm. of Burlington v. Dep't of Educ.

(1985); see also

(d) ("If the

hearing officer in a due process hearing conducted by the SEA or

a State review official in an administrative appeal agrees with

the child's parents that a change of placement is appropriate,

that placement must be treated as an agreement between the State

and the parents . . . .").

Here, the hearing officer determined that the family's

actions taken between May 2019 and December 2020 (which included

placing Doe at Aucocisco but also included other private tutoring

and Dr. Hunter's evaluation) should be reimbursed because they

were taken to remedy education deficits caused by Portland's denial

of a FAPE to Doe from December 2017 to November 2019.

In the same decision, the hearing officer addressed a

separate issue and expressly found that Portland's January 2020

IEP provided a FAPE under the IDEA. The hearing officer did not

order ongoing placement at Aucocisco as of the time that she

approved the January 2020 IEP.

Section 1415(j)'s plain language contemplates children

remaining in their "then-current educational placement" during

IDEA proceedings. Doe was at Breakwater School when his parents

initiated the IDEA proceedings. However, under Burlington and

§ 300.518(d), a hearing officer's decision that parents'

unilateral change of placement is appropriate can constitute

- 9 - "agreement" between the state and parents for the purposes of the

stay-put provision. On the facts here, those regulatory and case

law requirements are not met. Further, the hearing officer did

not ever determine that placement at Aucocisco was appropriate.

Doe argues that, because the hearing officer ordered

repayment of the fall tuition at Aucocisco for a semester which

continued until January (after the date of the decision), the

hearing officer was actually ordering a continuing remedy. This

misconstrues the hearing officer's decision, which was clear that

reimbursement was being ordered for a denial of a FAPE between

2017 and 2019, and which expressly stated that "ongoing placement

of [Doe] at Aucocisco is not ordered."2

Portland argues that the use of the present tense in

§ 300.518(d) as to whether a "change of placement is appropriate"

is determinative in this case, because the hearing officer did not

order ongoing placement at Aucocisco, merely reimbursement as a

remedy for a past denial of FAPE. Doe argues that when

reimbursement is ordered, there is agreement between the state and

the parents that a change of placement is appropriate.

On the facts and the hearing officer's decision here,

the regulation does not bear the construction Doe and the district

2 The hearing officer's decision specified that annual tuition at Aucocisco is $45,675, but the Does had thus far paid $25,121.25 towards the first semester, which was the amount being reimbursed.

- 10 - court give it. The hearing officer approved the January 2020 IEP

as providing a FAPE. She did not find that continuing unilateral

placement by the parents at Aucocisco "is appropriate" so as to

constitute agreement.3 The regulation speaks of a present change

of placement, not a remedial order expressly limited to a fixed

period in the past. The hearing officer determined that the

equities supported reimbursement to the parents for a prior denial

of FAPE, but, on these facts, the hearing officer did not approve

a change of placement for Doe.

B.

The district court order also errs in treating two

separate provisions of the IDEA, § 1412(a)(10)(C)(ii), which deals

with reimbursement for private education when a student is denied

a FAPE, and § 1412(a)(1)(A), which requires states to make a FAPE

available to children with disabilities, as one. In addition to

the requirement that school districts provide a FAPE, the IDEA

provides that when parents unilaterally place a child with a

disability in private school "a court or a hearing officer may

require the agency to reimburse the parents for the cost of that

3 The dissent characterizes our decision as "effectively approv[ing] the state's unilateral decision to change [Doe]'s placement to public school." However, it was the parents who unilaterally placed Doe at Aucocisco, and the case law is clear that "parents who unilaterally change their child's placement during the pendency of review proceedings, without the consent of state or local school officials" bear the risk that the change of placement will not be approved. Burlington, 471 U.S. at 373–74.

- 11 - enrollment if the court or hearing officer finds that the agency

had not made a [FAPE] available to the child in a timely manner

prior to that enrollment."

(a)(10)(c)(ii); see

also Díaz-Fonseca v. Puerto Rico,

(1st Cir. 2006).

This reimbursement is a form of equitable relief. Díaz-Fonseca,

. The private school need not meet all of the IDEA's

requirements for a FAPE in order for parents to be reimbursed for

a placement. See Florence Cnty. Sch. Dist. Four v. Carter ex rel.

Carter,

(1993). "The question of whether a

unilateral placement is 'proper' [for reimbursement purposes] is

'viewed more favorably to the parent' than the question of whether

'the placement was required in order to provide a free appropriate

public education . . . .'" York Sch. Dep't v. S.Z. ex rel. P.Z.,

No. 13-CV-00042,

, at *17 (D. Me. Feb. 27, 2015)

(quoting Rome Sch. Comm. v. Mrs. B.,

, 33 n.5 (1st Cir.

2001)).

The two separate analyses as to two separate issues that

the hearing officer performed, in determining whether

reimbursement was warranted and whether the January 2020 IEP was

suitable, support our conclusion. The hearing officer determined

that the Does should be reimbursed for costs they sustained to

remedy the denial of a FAPE from December 2017 to November 2019,

and stated she did so because placement at Aucocisco and private

tutoring provided "some element of the missing special education

- 12 - services." The hearing officer then determined that the January

2020 IEP met the more rigorous IDEA standard of being reasonably

calculated to enable Doe to make progress in light of his specific

circumstance, see Endrew F.,

, and placed him in

the least restrictive environment practicable, see

(a)(5)(A). Her application of these two different standards,

as well as her finding that "ongoing placement . . . at Aucocisco

is not ordered," demonstrate that she was not approving a change

of placement.4

The IDEA's "elaborate administrative scheme" "places

those with specialized knowledge -- education professionals -- at

the center of the decisionmaking process" before parents can bring

suit in state or federal court. Frazier v. Fairhaven Sch. Comm.,

(1st Cir. 2002) (first quoting N.B. ex rel. D.G.

v. Alachua Cnty. Sch. Bd.,

(1st Cir. 1996)).

"[T]he provision of judicial review is 'by no means an invitation

to the courts to substitute their own notions of sound educational

policy for those of the school authorities which they review.'"

at 61 (quoting Bd. of Educ. v. Rowley,

(1982)). Here, the hearing officer has clearly made the holdings

4 In noting the separate analyses, we do not imply that a least restrictive environment finding is necessary in order for a hearing officer to determine that a unilateral change of placement to private school is appropriate. Our decision is limited to the facts of this case, where a current IEP was approved concurrently with the reimbursement order.

- 13 - we have described. Under the IDEA, federal judges are not free to

substitute their own views as to what the IDEA requires be provided

to the child. "Judges are not education professionals and

generally do not have the knowledge and expertise that hearing

officers in IDEA cases have." Valentín-Marrero ex rel. GAJVM v.

Puerto Rico, Nos. 20-2054, 20-2112,

, at *5 (1st

Cir. Mar. 24, 2022). The hearing officer clearly held that she

did not agree with the parents' unilateral change of Doe's

placement to Aucocisco; indeed, she never found that the placement

at Aucocisco offered a FAPE and, to the contrary, found that as of

January 2020, Portland offered an appropriate IEP which provided

a FAPE. It is Congress's determination that the child is best

served in a setting where he receives a FAPE. See 20 U.S.C.

1412(a)(1)(A).

C.

The case most heavily relied on by the district court,

Sudbury Public Schools v. Massachusetts Department of Elementary

& Secondary Education,

(D. Mass. 2010), is

distinguishable. There, the hearing officer made no findings

regarding prospective relief, but the district court found that

reimbursement for a private placement in the past year, where the

school's proposed IEP was not appropriate, was an agreement for

purposes of the stay-put order.

. This case is quite

different from the one at hand, however, because the hearing

- 14 - officer did not approve the IEP and made no prospective

determination whatsoever in Sudbury.5

Affirming the district court decision would mean that

even when school districts take actions to come into compliance

with the IDEA and provide students with a new IEP providing a FAPE,

as happened in this case, any past denial of a FAPE (before the

school district supplies an IEP providing a FAPE) that the hearing

officer determines should be reimbursed as an equitable matter

will have far-reaching consequences. This would put the school

district on the hook for placement at a private school for the

pendency of litigation. IDEA litigation can be years long and, in

that time, private school tuition can run in the hundreds of

thousands of dollars. Wallkill, where a hearing officer found

that a unilateral private placement was appropriate for one year

but not the two subsequent years, demonstrates the potential

5 Nor is our finding inconsistent with A.W. ex rel. B.W. v. Board of Education of Wallkill Central School District, No. 14- CV-1583,

(N.D.N.Y. May 26, 2015). In Wallkill, the administrative hearing officer found that the parents' unilateral placement was appropriate for one year, but inappropriate for the two subsequent years, and ordered reimbursement for only the first year.

. The district court then declined to find agreement for the purposes of the stay- put order on the basis of that one year, reasoning that the administrative decision should be read comprehensively and that it would be unfair to "allow a party to cling to a discrete portion of a comprehensive decision to achieve their preferred outcome while discarding the more significant portion of that same decision which concurrently rendered a completely, overarching different result . . . ."

. Similarly, it would be unfair here to ignore the entirety of the hearing officer's findings.

- 15 - pitfalls of this approach.

, at *2. Not only does

the plain language of § 1415(j) and § 300.518(d) foreclose such a

reading, but such an outcome is contrary to the IDEA's purposes.

The IDEA was "enacted . . . to ensure that disabled

children could receive an appropriate education free of cost."

Doe v. Bos. Pub. Sch.,

(1st Cir. 2004). It also

"manifests a preference for mainstreaming disabled children."

C.G. ex rel. A.S. v. Five Town Cmty. Sch. Dist.,

(1st Cir. 2008). Here, Portland has offered an IEP which the

hearing officer found would provide Doe with a FAPE and which gave

the Does the option of placing him at any of the district's public

elementary schools. Portland has been ordered to reimburse the

family for actions taken to remedy Portland's past denial of a

FAPE. The purposes of the IDEA are not served by having Portland

continue to pay for Doe's tuition at Aucocisco.

IV.

We reverse the district court's grant of Doe's motion to

enforce placement. No costs are awarded.

-Dissenting Opinion Follows-

- 16 - THOMPSON, Circuit Judge, dissenting. This interlocutory

appeal presents us with a specific and narrow issue to resolve:

Pursuant to the Individuals with Disabilities Education Act's

(IDEA) stay put provision,

(j), whether John Doe

is properly placed at the private Aucocisco School during the

adjudication of the Does' claims against Portland Public Schools.

The answer, in my view, is a resounding yes. What will become

clear in the analysis set forth below is that my view of the record

in this case and the applicable statute is diametrically opposed

to the majority's view.

My colleagues in the majority have covered the

background in this case, but here are the vital pieces that propel

my take on the issue before us: In October 2020, the hearing

officer presiding over the Does' due process hearing concluded

that Portland Public Schools had failed to provide John Doe with

a free and appropriate public education (FAPE) (as required by the

IDEA) from December 2017 through November 2019. To remedy this

wrong, the hearing officer ordered Portland Public Schools to

reimburse the Does for expenditures they had made on their own

initiative for John's education from May 2019 through December

2020. See Burlington Sch. Comm. v. Dep't of Educ.,

(1985) (stating retroactive reimbursement to parents for

school tuition is an available and proper remedy for denial of a

FAPE). The reimbursement order -- approximately $74,600 --

- 17 - included the Does' expenditures for tutoring and summer

programming at Aucocisco beginning in May 2019, private tutoring

during fall 2019, tuition at Aucocisco for spring, summer, and

fall 2020, an evaluation to assess an orthographic processing

disorder, plus some transportation costs. The hearing officer

found that "[t]he tutoring and programming provided by Aucocisco,

as well as the tutoring provided while [John] was enrolled at

Breakwater, easily satisf[ied] the standard of being proper under

the Act by providing some element of the missing special education

services." (Internal quotation omitted). In the same order, the

hearing officer also concluded that the IEP Portland Public Schools

proposed to the Does in January 2020 (which would place John in

one of Portland's public schools with a portion of each day spent

in one-on-one instruction for reading, writing, and math as well

as other supports built into the week) "was reasonably calculated

to enable [John] to make progress appropriate in light of his

circumstances and thus offered him a [FAPE]. . . . Because an

appropriate IEP was offered in January 2020, ongoing placement of

[John] at Aucocisco is not ordered."

The Does' complaint filed with the district court

appeals the hearing officer's conclusion about the proposed IEP,

requests recovery of the attorneys' fees and expenses throughout

the due process administrative proceeding pursuant to

§ 1415(i)(3)(B), and claims Portland intentionally discriminated

- 18 - against them when it denied John special educational services6 in

violation of the Americans with Disabilities Act,

, and Section 504 of the Rehabilitation Act,

. Neither party in this litigation has challenged the scope

or the amount of the reimbursement the hearing officer ordered.

While those four claims have been percolating, the Does

asked the district court to enforce placement for John at Aucocisco

for the duration of the judicial proceedings.7 As we already know,

the district court granted the motion and Portland Public Schools

sought an interlocutory appeal hoping to overturn the district

court's decision. All we are called upon to decide at the moment

is where the stay put provision, applied to the record before us,

places John while the parties litigate the Does' claims.

The IDEA's stay put provision directs that, "during the

pendency of any proceedings conducted pursuant to this section,

unless the State or local educational agency and the parents

otherwise agree, the child shall remain in the then-current

educational placement of the child."

(j). The

6 The Does allege that the Portland school psychologist who initially evaluated John showed disability-based animus towards him because she admitted at the due process hearing that she is "biased" towards keeping students in a regular education setting to watch for improvement. 7 The docket for the underlying case shows Portland Public Schools moved for summary judgment on the Does' two discrimination claims and that this motion is still pending before the district court.

- 19 - IDEA does not define "then-current educational placement," but the

implementing regulation provides an important piece of guidance:

"If the hearing officer in a due process hearing . . . agrees with

the child's parents that a change of placement is appropriate,

that placement must be treated as an agreement between the State

and the parents for purposes of [the stay put provision]."

. This court has previously noted that "the

interim placement during proceedings challenging the child's

regular placement shall be the child's current educational

placement, 'unless the . . . educational agency and the parents

otherwise agree.'" Verhoeven v. Brunswick Sch. Comm.,

(1st Cir. 1999) (quoting § 1415(j)). And, importantly, this

court has repeatedly emphasized that the stay put provision "is

designed to preserve the status quo pending resolution of

administrative and judicial proceedings under the [IDEA]. The

preservation of the status quo ensures that the student remains in

the last placement that the parents and the educational authority

agreed to be appropriate." Verhoeven,

(quotation

and citation omitted); see Doe v. Brookline Sch. Comm.,

(1st Cir. 1983). All of this means that, when we are

asked to determine the stay put placement, we are looking back for

the last time the parents and the state agreed on a placement.

The district court granted the parents' Motion to

Enforce Maintenance of Placement at Aucocisco because it concluded

- 20 - "Aucocisco was the last placement that both the Does and the State

agreed to [and] that Aucocisco is John's proper placement for

purposes of the stay put provision of the IDEA. . . . Portland is

therefore required to fund John's education at Aucocisco

throughout these judicial proceedings." In my view, the district

court hit the nail on the head.

The way I see it, the application of the statutory

language to the hearing officer's decision leads to the inescapable

conclusion that John should remain at Aucocisco during the pendency

of his litigation against Portland Public Schools. Here's why.

The statutory framework indicates the stay put placement is the

last location the parents and state agreed on. The record is

crystal clear that the parents want John placed at Aucocisco and

have not agreed to a change of placement back to Portland's public

schools. As for the state's point of view,

(d)

tells us that when the hearing officer presiding over a due process

hearing agrees with the parents that a change of placement is

appropriate -- as the hearing officer did when she stamped her

seal of approval on the parents' unilateral decision to move John

to Aucocisco when the state wouldn't step up and address John's

needs -- this placement "must be treated as an agreement between

the state and the parents for purposes of" stay put. (Emphasis

mine.) In addition, to order reimbursement for a unilateral

private school placement, the hearing officer must first determine

- 21 - that the school district violated the student's right to a FAPE

and that the private school placement chosen by the parents is

appropriate under the IDEA.

(a)(10)(C)(ii)

(allowing reimbursement if the hearing officer finds the public

agency denied the student a FAPE); Florence County Sch. Dist. Four

v. Carter,

(1993) (stating parents "are entitled to

reimbursement only if [the presiding officer] concludes both that

the public placement violated the IDEA and that the private school

placement was proper under the Act"). The hearing officer

acknowledged these two requirements before she ordered the

reimbursement to the Does, then explicitly concluded she found

Portland denied John a FAPE and that the "tutoring and programming

provided by Aucocisco . . . easily satisf[ied] the standard of

being proper under the Act by providing some element of the missing

special education services." (Internal quotation omitted). The

hearing officer then itemized the expenses to be reimbursed, which

included the Does' tuition expenses at Aucocisco covering the 2020

calendar year. So it's clear to me that the last place the parties

agreed was the right place for John was Aucocisco, and Aucocisco

is therefore not a change of placement but the statutory stay put

placement for John while the district court adjudicates the Does'

claims.

The hearing officer's closing sentence in her order --

"[b]ecause an appropriate IEP was offered in January 2020, ongoing

- 22 - placement of [John] at Aucocisco is not ordered" -- does not change

the outcome of the analysis. Her thumb on the scale for John's

future placement is not an agreement between the state and parents

for a change of placement because the parents clearly didn't agree

with the public school + one-on-one extras, as demonstrated by

their appeal of this conclusion to the district court. And I think

it's worth repeating that the district court has yet to resolve

this issue. Because the hearing officer's conclusion is not an

agreement between the state and the parents for a change in

placement, I once again land back at the last time the parents and

state did agree -- which was when the hearing officer concluded

that the parents' unilateral placement of John at Aucocisco was

okay. See Verhoeven,

("The interim placement

during proceedings challenging the child's regular placement shall

be the child's current educational placement, 'unless the . . .

educational agency and the parents otherwise agree.'") (quoting

§ 1415(j));

(d).

I acknowledge that this last sentence of her order --

when she stated she was not ordering continuing placement at

Aucocisco -- could be read as a confusing internal discrepancy

because she okayed both the reimbursement of Aucocisco tuition

expended for fall 2020 and the proposed IEP in which Portland would

have placed John at a public school for the same time period. This

last sentence could be a reflection of her conclusion that the IEP

- 23 - offered met the statutory standard, meaning that although the Does'

unilateral decision to place John at Aucocisco was fine and they

were entitled to reimbursement for the tuition they had paid in

2020, John would have a change of placement coming up after that.

Regardless, this conclusion does not reflect an agreement between

the parents and the state because the parents didn't agree with

Portland Public Schools or the hearing officer on this point.

Moreover, and at the risk of sounding like a broken record, the

issue before us is not about John's ultimate proper placement; it

is about where he should be educated while his parents challenge

the hearing officer's conclusion about the propriety of the

proposed IEP in addition to their other claims.

My conclusion is also consistent with the stay put

policy's central objective: to provide stability for the child

during the pending of judicial proceedings by preserving the status

quo. See Verhoeven,

; Brookline Sch. Comm.,

. The majority's holding -- which effectively approves

the state's unilateral decision to change John's placement to

public school -- violates this policy because it will force John

back to a school he hasn't attended in almost three years. And he

may be heading back there eventually, but at this point his parents

have not agreed to this placement and the stay put policy clearly

seeks to find the last place agreed to by both sides and to prevent

a student from ping ponging between schools while the parents fight

- 24 - for their child's rights to supplemental education services when,

as here, the child has been deemed eligible. The majority opinion

sets an unfortunate precedent, one that goes beyond the simple

application of the stay put provision to the record of this case

and dishonors the spirit of the stay put provision.

For the reasons I have explained, the application of the

stay put provision to the record of this case shows that John Doe's

proper and current placement is at Aucocisco. Accordingly, I

dissent.

- 25 -